September 2014 Archives

The first of three challenges to Missouri's ban on same-sex marriages was argued in court today, with the judge promising a quick ruling. Today's case, in state court, challenged the state's refusal to recognize gay marriages from out of state, while a second state court case will challenge the ban on in-state marriages. A federal case is also pending.

As was the case in many other states' disputes, the ACLU argued equal protection, while the state argued for state sovereignty.

In AT&T Mobility v. Concepcion, the U.S. Supreme Court told us that the Federal Arbitration Act overrides state contract law if a contract contains an arbitration clause. In American Express v. Italian Colors Restaurant, the Court upheld an arbitration agreement's class action waiver even when the cost of arbitrating a federal antitrust claim would exceed the recovery amount.

This approach has it critics. Notably, Judge Richard Posner said that class action waivers effectively eliminate litigation: "The realistic alternative to a class action is not 17 million individual suits, but zero individual suits, as only a lunatic or a fanatic sues for $30."

"When I took my oath of office as a federal district judge in 1992, I knew that someday I might condemn an innocent man to die. I willingly accepted that risk when I took that oath, and I willingly accept that risk now. I will have to live with my knowing choice if such a horror comes to pass. I will have no one to blame but myself."

Early this month, a death row inmate was exonerated, thanks to a little DNA that was recently uncovered and tested. This was not particularly remarkable -- there have been many DNA-based exonerations over the last couple of decades. But the case drew attention because of a passing reference to the crime by Justice Antonin Scalia, who mocked the inmate's appeal while discussing Justice Blackmun's famous "tinker with the machinery of death" dissent.

At the time, we noted that both Justice Scalia and Justice Blackmun were assuming that the defendant was guilty -- Blackmun later argued for leniency because of the inmate's IQ, not factual innocence. But because Justice Scalia has a way with words, he himself was mocked by the press, including a particularly harsh take by "Digby," a blogger writing for Salon. U.S. District Court Judge Richard Kopf, a trial judge for the District of Nebraska who imposes the death penalty, penned an equally harsh (and hilarious) response in his usual, frank style.

And then, in a follow-up, he wrote something even greater: insight into what it is like to be a judge who imposes the death penalty, sometimes, maybe, on innocent defendants.

Here's one way to solve the problems with Hobby Lobby: All the health insurance companies in the country can agree that they won't sell any insurance policy that doesn't contain contraceptive coverage. That's sort of what happened in Annex Medical v. Burwell.

Annex is a small corporation with 16 full-time employees. Its controlling shareholder, Stuart Lind, has a religious objection to providing contraception to female employees as part of a health insurance plan. He was shocked -- shocked! -- to find out that the Blue Cross plan he selected for his employees contained contraceptive coverage. He called Blue Cross to see if they could exclude that coverage, but Blue Cross refused. In fact, no insurer Lind contacted would exclude contraceptive coverage.

"Has the Eighth Circuit gone nuts?" It's a fair question, one posed by the venerable U.S. District Court Judge Richard Kopf after the Eighth Circuit affirmed a downward departure of between 135 and 168 months Abby Rae Cole.

The trial court, which sentenced Cole to three years of probation, noted that she was part of "one of the largest corporate frauds in Minnesota history" (a $33 million rip-off of Best Buy) and "was also a significant tax fraud" (she dodged $3 million in taxes).

Nonetheless, both the district court and the appeals court felt that she deserved leniency. Why?

About U.S. Eighth Circuit

U.S. Eighth Circuit features news and information from the U.S. Court of Appeals for the Eighth Circuit, which hears appeals from U.S. District Courts in Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota. This blog also features news that would be of interest to legal professionals practicing in the 8th Circuit. Have a comment or tip? Write to us.